[CCWG-ACCT] WP2 Issues from last night's call

[Greg Shatan]

Becky,

Thanks for that clarification.  Looking at Section 1.2 of Specification 1,
there are 5 subsections.  The language imported into the Mission mirrors
Section 1.2.1.  How are Section 1.2.2 through 1.2.5 given the same
protection?

Thanks!

Greg

On Wed, Nov 4, 2015 at 3:45 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> Taking off Andrew and the IAB folks as this is not their issue
>
> W    As part of this process we have captured and imported the essence of
> the "picket fence” - the “what” (as opposed to the “how”) of Consensus
> Policy  (Section 1.2 of the Consensus and Temporary Policies spec) into
> ICANN's Mission statement for names (ICANN’s Mission for names covers issues
> for which uniform or coordinated resolution is reasonably necessary to
> facilitate openness, interoperability, resilience, security and/or
> stability of the DNS).  That means that issues that fall into the so-called
> “picket fence” are within ICANN’s Mission.  That has been functionally
> true via the registry and registrar agreements since the beginning of ICANN
> time.  We have just made this a bylaw fact.  Section 1.3 of the Spec gives
> examples
>
> Se
>
> S
> J. Beckwith Burr
> Deputy General Counsel & Chief Privacy Officer
>
>
> From: <Silver>, Bradley <Bradley.Silver at timewarner.com>
> Date: Wednesday, November 4, 2015 at 12:02 PM
> To: Becky Burr <becky.burr at neustar.biz>, Steven Metalitz <met at msk.com>,
> 'Malcolm Hutty' <malcolm at linx.net>, Alan Greenberg <
> alan.greenberg at mcgill.ca>, Accountability Community <
> accountability-cross-community at icann.org>, Andrew Sullivan <
> ajs at anvilwalrusden.com>, "iab at iab.org" <iab at iab.org>
> Subject: RE: [CCWG-ACCT] WP2 Issues from last night's call
>
> Becky and all – I’m new to this thread but have been following this issue
> for some time.  I’m still confused as to how Spec 1 clarifies the
> “regulation” language.  If spec 1 says ICANN can do something by way of
> consensus policy making, does that trump what the bylaws say ICANN can do?
>  Bylaws trump, don’t they?
>
>
>
>
> *Bradley Silver Chief Intellectual Property**Counsel |* *Time Warner Inc.
> *
>
> One Time Warner Center New York, NY 10019-8016 *|* P: 212 484 8869  *|*
> F: 212 658 9293
>
> [image: cid:image004.png at 01D11648.738D46F0]
>
>
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Burr,
> Becky
> *Sent:* Wednesday, November 04, 2015 11:33 AM
> *To:* Metalitz, Steven; 'Malcolm Hutty'; Alan Greenberg; Accountability
> Community; Andrew Sullivan; iab at iab.org
> *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
>
>
> For some reason the Consensus/Temporary Policy Spec is Spec 4 in the RAA.
> Note that Section 1.2 outlines the topics that are fair game for consensus
> policies, which includes “resolution of disputes regarding the registration
> of domain names (as opposed to the use of such domain names, but including
> where such policies take into account use of the domain names)  Section 1.3
> gives specific *examples (without limitation)*, including "reservation of
> registered names in a TLD that may not be registered initially or that
> may not be renewed due to reasons reasonably related to (i) avoidance of
> confusion among or misleading of users, (ii) intellectual property, or
> (iii) the technical management of the DNS or the Internet (e.g.,
> establishment of reservations of names from registration)"   CONSENSUS
> POLICIES AND TEMPORARY POLICIES SPECIFICATION
>
> 1.    *Consensus Policies.*
>
> 1.1. "*Consensus Policies*" are those policies established (1) pursuant
> to the procedure set forth inICANN's Bylaws and due process, and (2)
> covering those topics listed in Section 1.2 of this document.
> The Consensus Policy development process and procedure set forth in ICANN's
> Bylaws may be revised from time to time in accordance with the process set
> forth therein.
>
> 1.2. Consensus Policies and the procedures by which they are developed
> shall be designed to produce, to the extent possible, a consensus of
> Internet stakeholders, including registrars.  Consensus Policies shall
> relate to one or more of the following:
>
> 1.2.1. issues for which uniform or coordinated resolution is reasonably
> necessary to facilitate interoperability, security and/or stability of the
> Internet, Registrar Services, Registry Services, or the Domain Name System
> ("DNS");
>
> 1.2.2. functional and performance specifications for the provision of
> Registrar Services;
>
> 1.2.3. registrar policies reasonably necessary to
> implement Consensus Policies relating to a gTLD registry;
>
> 1.2.4. resolution of disputes regarding the registration of domain names
> (as opposed to the use of such domain names, but including where such
> policies take into account use of the domain names); or
>
> 1.2.5. restrictions on cross-ownership of registry operators and
> registrars or Resellers and regulations and restrictions with respect to
> registrar and registry operations and the use of registry and registrar
> data in the event that a registry operator and a registrar or Reseller are
> affiliated.
>
> 1.3. Such categories of issues referred to in Section 1.2 shall include,
> without limitation:
>
> 1.3.1. principles for allocation of registered names in a TLD (e.g.,
> first-come/first-served, timely renewal, holding period after expiration);
>
> 1.3.2. prohibitions on warehousing of or speculation in domain names by
> registries or registrars;
>
> 1.3.3. reservation of registered names in a TLD that may not be registered
> initially or that may not be renewed due to reasons reasonably related to
> (i) avoidance of confusion among or misleading of users, (ii) intellectual
> property, or (iii) the technical management of the DNS or the Internet
> (e.g., establishment of reservations of names from registration);
>
> 1.3.4. maintenance of and access to accurate and up-to-date information
> concerning Registered Names and name servers;
>
> 1.3.5. procedures to avoid disruptions of domain name registrations due to
> suspension or termination of operations by a registry operator or a
> registrar, including procedures for allocation of responsibility among
> continuing registrars of the Registered Names sponsored in aTLD by a
> registrar losing accreditation; and
>
> 1.3.6. the transfer of registration data upon a change in registrar
> sponsoring one or more Registered Names.
>
> 1.4. In addition to the other limitations on Consensus Policies, they
> shall not:
>
> 1.4.1. prescribe or limit the price of Registrar Services;
>
> 1.4.2. modify the limitations on Temporary Policies (defined below)
> or Consensus Policies;
>
> 1.4.3. modify the provisions in the Registrar Accreditation Agreement
> regarding terms or conditions for the renewal, termination or amendment of
> the Registrar Accreditation Agreement or fees paid by Registrar to ICANN; or
>
> 1.4.4. modify ICANN's obligations to not apply standards, policies,
> procedures or practices arbitrarily, unjustifiably, or inequitably and to
> not single out Registrar for disparate treatment unless justified by
> substantial and reasonable cause, and exercise its responsibilities in an
> open and transparent manner.
>
> 2.    *Temporary Policies.* Registrar shall comply with and implement all
> specifications or policies established by the ICANN Board of Directors (the
> "*Board*") on a temporary basis, if adopted by the Board by a vote of at
> least two-thirds of its members, so long as the Board reasonably determines
> that such modifications or amendments are justified and that immediate
> temporary establishment of a specification or policy on the subject is
> necessary to maintain the stability or security of Registrar Services,
> Registry Services or the DNS or the Internet ("*Temporary Policies*").
>
> 2.1. Such proposed specification or policy shall be as narrowly tailored
> as feasible to achieve those objectives. In establishing any Temporary
> Policy, the Board shall state the period of time for which the Temporary
> Policy is adopted and shall immediately implement the Consensus Policy
> development process set forth in ICANN's Bylaws.
>
> 2.1.1. ICANN shall also issue an advisory statement containing a detailed
> explanation of its reasons for adopting the Temporary Policy and why the
> Board believes such Temporary Policy should receive the consensus support
> of Internet stakeholders.
>
> 2.1.2. If the period of time for which the Temporary Policy is adopted
> exceeds 90 days, the Board shall reaffirm its temporary adoption every 90
> days for a total period not to exceed one year, in order to maintain such
> Temporary Policy in effect until such time as it becomes aConsensus Policy.
> If the one year period expires or, if during such one year period, the
> Temporary Policy does not become a Consensus Policy and is not reaffirmed
> by the Board, Registrar shall no longer be required to comply with or
> implement such Temporary Policy.
>
> 3.    *Notice and Conflicts.* Registrar shall be afforded a reasonable
> period of time following notice of the establishment of a Consensus Policy
> or Temporary Policy in which to comply with such policy or specification,
> taking into account any urgency involved. In the event of a conflict
> between Registrar Services and Consensus Policies or any Temporary Policy,
> the Consensus Polices or Temporary Policy shall control, but only with
> respect to subject matter in conflict. For the avoidance of
> doubt,Consensus Policies that meet the requirements of this Specification
> may supplement or supersede provisions of the agreements between Registrar
> and ICANN, but only to the extent that suchConsensus Policies relate to the
> matters set forth in Section 1.2 and 1.3 of this Specification.
>
>
>
> J. Beckwith Burr
>
> Deputy General Counsel & Chief Privacy Officer
>
>
>
>
>
> *From: *<Metalitz>, Steven Metalitz <met at msk.com>
> *Date: *Wednesday, November 4, 2015 at 11:03 AM
> *To: *'Malcolm Hutty' <malcolm at linx.net>, Alan Greenberg <
> alan.greenberg at mcgill.ca>, Becky Burr <becky.burr at neustar.biz>,
> Accountability Community <accountability-cross-community at icann.org>,
> Andrew Sullivan <ajs at anvilwalrusden.com>, "iab at iab.org" <iab at iab.org>
> *Subject: *RE: [CCWG-ACCT] WP2 Issues from last night's call
>
>
>
> Malcolm, can you explain how domain name registration is not a “service
> that uses the Internet’s unique identifiers”?
>
>
>
> Steve Metalitz
>
>
>
> *From:*accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Malcolm
> Hutty
> *Sent:* Wednesday, November 04, 2015 10:59 AM
> *To:* Alan Greenberg; Burr, Becky; Accountability Community; Andrew
> Sullivan; iab at iab.org
> *Subject:* Re: [CCWG-ACCT] WP2 Issues from last night's call
>
>
>
>
>
> On 04/11/2015 14:17, Alan Greenberg wrote:
> > In the regulatory section, I would still like to see language that
> > explicitly says that the unique identifiers themselves are deemed to not
> > be "content".
>
> Alan,
>
> If you read the clause carefully, you will see that it does not say that
> ICANN cannot regulate Internet content; that's just a loose paraphrasing
> some people have been using in conversation.
>
> Instead, it says that ICANN "shall not regulate
> services that use the Internet's unique identifiers, or the content that
> such services carry or provide."
>
> So the target of that exclusion is not "content" but "services" and "the
> content that such services carry or provide". This neatly avoids the
> question of whether domain names are content, because even if they are,
> they are still outside the reach of that exclusion.
>
> Malcolm.
> --
> Malcolm Hutty | tel: +44 20 7645 3523
> Head of Public Affairs | Read the LINX Public Affairs blog
> London Internet Exchange | http://publicaffairs.linx.net/
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